Orr v Hunter Quarries Pty Ltd

Issues for Determination

1. The issues for determination in this judgment are: 1. Do I have power to withdraw some of the questions in the Stated Case? 2. Do I have power to refer additional questions having already sent my Stated Case to the Court of Criminal Appeal? 3. If I have such power(s), should I exercise them?

Section 5AE of the Criminal Appeal Act

1. Section 5AE of the Criminal Appeal Act provides: "5AE Point of law stated during summary proceedings (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction, the District Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit."
2. There is nothing in the wording of s 5AE of the Criminal Appeal Act to say that questions in a Stated Case cannot be withdrawn, nor is there anything in the language of the section to suggest that only one request can be made.

Background to the Prosecutor's Application

1. At [7]-[33] of the Primary Judgment I set out what I thought were uncontroversial propositions regarding the law to be applied in relation to prosecutions under the WHS Act. Included in those propositions were the following paragraphs: "21 The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68]; (2001) 110 IR 57." … 26 A defendant must have regard not only for the ideal worker but for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Limited v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v The Broken Hill Proprietary Company Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable. 27 The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore it was not reasonably practical to guard against it: WorkCover Authority of NSW v Kirk Group Holdings Pty Limited [2004] NSWIRComm 207; (2004) 135 IR 166 at [129]."
2. The third element to be considered in the charge brought against Hunter Quarries was whether the defendant failed to comply with its health and safety duty by failing to take the steps set out in pars 11 and/or 12 of the Amended Summons. In that regard the Primary Judgment said: "Element 3 in respect of the operation of the excavator at the time of the roll-over 339 In relation to the operation of the excavator by Mr Messenger on the day of the accident, the likelihood of the risk occurring was extremely high. The excavator should not have been sitting across the slope. It should not have been operating with the boom fully extended with a large rock in the bucket. It should not have been operating by slewing the turntable, while the excavator was across a slope, with the boom fully extended. However, for reasons given below, I find that it was not reasonably foreseeable to the defendant that Mr Messenger would have operated the excavator in the fashion he did on the day of the accident. 340 So far as the degree of harm is concerned, the harm that might eventuate if the excavator rolled over when operated on the rocky slope, as happened on the day of the accident, was very significant. 341 As for the defendant's knowledge of the pleaded risk arising from the method of operation of the excavator on the day of the accident, I find that the defendant did not know and could not know that Mr Messenger was going to take the excavator down the slope at the northern end of the quarry and operate it in the fashion which he did. I make this finding because: (1) Mr Messenger was told by Mr Russell to build a bund across the "pad" area above the rocky slope, and then take the excavator down to the trench and continue to excavate it. (2) The toolbox talk minutes record the bunding task as being given by Mr Russell to Mr Messenger. (3) Mr Black corroborated Mr Russell's evidence that this was the job he allocated, in front of the other workers, at the toolbox talk. (4) Workers at the quarry, even those of the status of Mr Messenger, were expected to perform the tasks allocated to them, and not to perform any extra tasks unless, at the very least, they informed Mr Russell of their proposed task and obtained his agreement to it. (5) Mr Messenger was seen as an obedient employee - both in relation to following directions from his superiors and in relation to observing the safe working practices of the quarry. (6) To enter the rocky slope, Mr Messenger breached a cardinal rule in the quarry, which was that workers were not to cross a bund. (7) There was no particular need for this work to be done on the day, and certainly not in this fashion. (8) Having the excavator working across the slope, rather than facing up the slope, conflicted with the practice of using excavators in the quarry, and conflicted with the training which had been given to Mr Messenger. (9) Slewing the turntable with the boom extended and a weight in the bucket also conflicted with the practice in the quarry and the training which had been given to Mr Messenger. (10) Operating the excavator on unstable and rocky ground, let alone on a slope, conflicted with the practice in the quarry and the training which had been given to Mr Messenger. (11) Dropping rocks off the edge of the highwall conflicted with the practice in the quarry and the training which had been given to Mr Messenger. (12) Operating the excavator above the highwall, without the area below being bunded off to prevent others from going onto the bench, conflicted with the training given to Mr Messenger. (13) Finally, even being on the rocky slope, let alone operating an excavator there, meant that Mr Messenger had entered a no-go zone in the quarry. The reaction of Mr Russell to the excavator being on the rocky slope, as corroborated by Mr Black, was "What the fuck was he doing there?" 342 While a person conducting a business or undertaking must guard against the possibility that an employee may be careless or inadvertent in carrying out a task, there is a line to be drawn between such behaviour and the deliberate and unforeseeable flouting of rules in the workplace and the training given to employees. On all of the visits by inspectors to the quarry, and in the experience of all employees of the quarry who gave evidence, no-one had ever seen an excavator being operated: after driving across a bund; in a no-go zone; across a slope; on unstable ground; or with the boom fully extended near a highwall. 343 All of these matters lead me to conclude that the risk of death or serious injury from the excavator overturning on the day of the accident was not reasonably foreseeable. It follows that it was not reasonably practicable for the defendant to make provision against the happening of such event. Element 3 in respect of the everyday operation of excavators 344 In relation to the everyday operation of excavators, all of the evidence in the case was that excavators in the quarry, apart from that operated by Mr Messenger on the day of the accident, were engaged in activities of digging or loading, only when operated on flat and stable ground. When moving within the quarry the excavators travelled up and down haul roads which were sloped, but did so only by going directly up or down the slope and not across it, keeping the boom and the bucket as close as possible to the ground. Any dangerous areas in the quarry were bunded off, and this included no-go zones, and the edges of benches and roads. All of the evidence in the case established that excavators operated in this fashion are particularly stable pieces of machinery. The likelihood of the risk of overturn when an excavator was operated in accordance with these precepts was non-existent. There was thus no need for the defendant to take additional steps to ensure safety within the meaning of the Act. The Plant Charge 345 For these reasons I am not satisfied beyond a reasonable doubt that the defendant failed to ensure, so far as was reasonably practicable, the provision and maintenance of safe plant, and in particular failed to ensure that the excavator was fitted with a ROPS, as alleged in par 11 of the Amended Summons."
3. The fourth element in the prosecution of Hunter Quarries was whether the defendant's breach of duty exposed Mr Messenger to a risk of death or serious injury. The Primary Judgment said on this topic: "Element 4 - Did the defendant's breach of duty expose Mr Messenger to a risk of death or serious injury? 357 Given my findings above on Element 3, that there was no breach of duty by the defendant, consideration of Element 4 really does not arise. However, I will set out my findings on causation. 358 The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash at [127]. 359 The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall. 360 Regard must be had to the scope and objects of the Act: Simpson Design & Associates Pty Ltd at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130]. 361 For the reasons I have already expressed, my conclusion is that the defendant did not breach its duty by reference to the particulars of breach pleaded in pars 11 and 12 of the Amended Summons. I am also not satisfied beyond reasonable doubt that the prosecutor has proved Element 4. 362 The following submission appears in par 333 of the defendant's written submissions (MFI 62): "It is a tragedy that Mr Messenger lost his life. The Court has seen the effect it had on his step-father Mr Russell. No-one can explain why he did what he did. The only matter which is known about the tragedy is that it was done in direct contravention of the work procedures in place at the time; done in direct contravention of the direction given to Mr Messenger less than hour before; done by literally dismantling the safety barrier in place to stop people going into the dangerous area of the quarry; done without the authority to enter such an area; done in circumstances where no one had ever observed any individual simply removing bunds and barriers to enter such areas; and done by a person whose previous work record was excellent." 363 This submission is accepted. 364 The facts show that the cause of Mr Messenger being exposed to the risk was the unforeseeable actions of Mr Messenger himself. As previously found, the excavator should not have been: (1) driven across a bund; (2) operated in a no-go area; (3) operated on unstable or rocky ground; (4) operated while sitting across the slope; (5) operated with the boom fully extended with a large rock in the bucket; (6) operated by slewing the turntable, while the excavator was sitting across a slope, with the boom fully extended; (7) operated in a fashion contrary to the training and instruction given."
4. Question 2 in the Stated Case already sent to the Court of Criminal Appeal reads as follows: "Was I entitled at law to have regard to the issue of the 'reasonable foreseeability' of the pleaded risk as part of my consideration under s 18 of the WHS Act of the reasonable practicability of the measures pleaded in [11] and [12] of the Amended Summons?"
5. Question 11 in the Stated Case asserted that there was an error of law in [339[-[345] of the Primary Judgment which are reproduced above.
6. Question 16 in the Stated Case asserted that there was an error of law in the findings in [364] of the Primary Judgment, which is reproduced above.
7. Question 17 in the Stated Case asserted that the principles of law set out in [21], [26], [27] of the Primary Judgment were not applicable to the statutory duty contained in s 19(1) of the WHS Act, taking in account that the statutory scheme of that Act including the provisions of ss 17 and 18.
8. Questions 2, 11, 16 and 17 in the Stated Case are the four questions which the prosecutor wants to retain in the Stated Case. Put broadly, all four questions concern the "reasonable foreseeability" aspects of the Primary Judgment. The prosecutor submitted that the approach taken in the Primary Judgment was an erroneous legal approach and for that reason, the Court of Criminal Appeal should identify and correct such error of law.
9. Further, the prosecutor submitted that while questions 2, 11, 16 and 17 should remain in the Stated Case for consideration by the Court of Criminal Appeal, I should also put before that court the seven additional (or replacement) questions set out in Schedule 1 to the Amended Notice of Motion.

The Decision in Cobar Management

1. I will now deal with the principles in Cobar Management, which have caused the prosecutor to have a change of heart.
2. Five judges sat on the hearing conducted by the Court of Criminal Appeal in Cobar Management. Dealing with the phrase "question of law" in s 5AE of the Criminal Appeal Act, the court said at [40]: "This survey makes it clear that the expression "question(s) of law" and cognate expressions are not deployed uniformly in the statute books and, as shall also be seen, there is no universal meaning or understanding of what is a question of law. Like any statutory expression, its meaning is ultimately to be derived from its statutory context and by reference to the purpose of the provision and statute in which it appears."
3. The court said at [46] that in hearing an application under s 5AE of the Criminal Appeal Act, "the Court is not exercising appellate jurisdiction in any strict sense when such questions are referred".
4. After reviewing decisions dealing with what is a "question of law" the court said at [58]-[59]: "58 It follows from these decisions that, whether or not the answer to a question framed along the lines of "whether or not it was 'open' to a judge to hold, on the facts as fully found, that a particular matter fell within the ordinary English meaning of a statutory expression reveals an error of fact or an error of law" depends upon the answer to the question. If it was open to so find, any error in the judge's conclusion would be one of fact, and not one with which a court authorised only to intervene on a question of law could disturb: see Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 33-34 (Edwards); if it was not open to so find, the error would be one of law. Edwards has been cited with approval in this context in Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 at [25] and [109]; and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 349; [1990] HCA 33. 59 A question so framed is not, in our opinion, obviously or self-evidently a question of law; rather it is simply a question which, depending upon the answer, will reveal either an error of fact or an error of law. If the latter, an appellate court authorised to intervene only in respect of such errors may do so. Putting the matter slightly differently, a question whether or not a particular conclusion based upon facts fully found was "open" to a judge cannot be characterised as a question of law in any a priori sense. It is, at most, a question of mixed fact and law, an expression which, in Da Costa v R (1968) 118 CLR 186 at 195; [1968] HCA 51, Windeyer J said 'seems to describe a hybrid, the progeny of a dispute as to facts and as to the effect of the facts when they have been determined one way or the other'."
5. It can be seen straight away why the prosecutor has present concerns about most of the questions in the Stated Case. Many of those questions start with the phrase: "Was it open for me to find…".

Amendment of the Stated Case: Withdrawal of Questions

1. Senior counsel for the prosecutor submitted that there was power to withdraw questions from a case already stated to the Court of Criminal Appeal for three reasons.

Reasons 1 & 2: Nature and Purpose of a Stated Case

1. Senior counsel for the prosecutor submitted that the nature of a Stated Case is advisory. It is not an appeal. No formal orders have yet been made by the District Court and it is open to this court to amend or change the Stated Case. The second reason focused upon the purpose of a Stated Case. The whole purpose of a Stated Case is for the trial judge to ask the Court of Criminal Appeal for advice about questions of law and then make a determination before concluding the matter. If the District Court no longer believes that the question it has referred will result in the provision of advice to assist it in the final resolution of the matter, then it must be open to the District Court not to pursue those matters.
2. Senior counsel for the defendant submitted that this court had already exercised its jurisdiction under s 5AE of the Criminal Appeal Act and that once the Stated Case had been sent to the Court of Criminal Appeal, then that was the only court seized of jurisdiction. Having sent the Stated Case to the Court of Criminal Appeal, the submission was that the jurisdiction of this court was "exhausted in relation to s 5AE". I accept the submission of senior counsel for the prosecutor that the District Court is not functus officio, as no final orders have yet been made to dispose of the proceedings.
3. I am attracted to the first and second reasons put forward by senior counsel for the prosecutor and find that I can amend the Stated Case which I previously sent to the Court of Criminal Appeal, although not exactly in the form urged by the prosecutor. It would be a pointless exercise, in the light of the decision of the Court of Criminal Appeal in Cobar Management, to put the present version of the Stated Case before that court. As senior counsel for the prosecutor pointed out, it is not as though the prosecutor could turn up to the Court of Criminal Appeal and simply decline to put forward submissions on those questions which are now perceived to fall foul of the decision in Cobar Management. While the original form of the Stated Case was that drafted by the prosecutor, once I sent it to the Court of Criminal Appeal, the questions became my questions. There is no utility at all in sending questions to the Court of Criminal Appeal which, according to the decision in Cobar Management, will simply not be answered as they are not questions of law.

Reason 3: Section 43 of the Interpretation Act

1. The third submission was that s 43 of the Interpretation Act 1987 (NSW) gives this court the power to amend the Stated Case. I reject this submission. Section 43(1) says that if an Act confers a power on any person or body to make a statutory rule, the power includes power to amend or repeal any statutory rule made in the exercise of that power. Sending a Stated Case to the Court of Criminal Appeal is not exercising a power to make a statutory rule.

Which questions should be withdrawn?

1. The prosecutor did ask that four of the questions in the existing Stated Case be retained, but that the others be withdrawn. Senior counsel for the prosecutor conceded that if I have power to withdraw some questions from the Stated Case, I have power to withdraw all of them.
2. Neither side could refer me to an authority in relation to withdrawing questions from an existing Stated Case. The defendant submits that I have no jurisdiction whatsoever to amend the Stated Case, however, I think it important that that issue should also be determined by the Court of Criminal Appeal. Such a decision is clearly one relating to a pure question of law, as it does not depend on any other facts found in this case.
3. In written submissions the prosecutor submitted that questions 2 and 11 in the Stated Case in their current form are pure questions of law because they are directed to the issue of whether the "reasonable foreseeability" of the pleaded risk is a matter that the court can properly take into account as part of the consideration of s 18 of the WHS Act. The prosecutor pointed out that the phrase "reasonable foreseeability" is not contained in s 18 of the WHS Act.
4. Further, the prosecutor submitted that question 11 in the Stated Case is a pure question of law because it is directed to the manner in which Element 3 of the offence is established. The question is whether each factor listed in s 18 is required to be considered in determining that element. The prosecutor submitted that in [339]-[344] of the Primary Judgment "there was no analysis of any of those factors in relation to whether the pleaded measures in the Amended Summons were 'reasonably practicable'".
5. The prosecutor submitted that question 16 in the Stated Case is a pure question of law, being whether any of the matters listed in [364] of the Primary Judgment were properly relevant to that determination. The prosecutor pointed out that the court is required to distinguish between the specific risk that manifested in the incident and the general class of risk on which the analysis under the WHS Act must focus.
6. Finally, the prosecutor submitted that question 17 is a pure question of law directed to the issue of whether principles enunciated in decisions of the Industrial Relations Commission concerning breaches of the previous legislation (the Occupational Health and Safety Act 2000) have application to the statutory duty contained in s 19(1) of the WHS Act.
7. During oral submissions I raised with senior counsel for the prosecutor whether it could be said that questions 2, 11 and 16 in the existing Stated Case fell foul of the decision in Cobar Management. Senior counsel conceded that questions 2, 11 and 16 could fall foul of the Cobar Management decision but that the additional questions set out in Schedule 1 to the Amended Notice of Motion covered the same ground (Tcpt 24).
8. Question 17 in the existing Stated Case starts off "with the forbidden words, or their equivalent" as I expressed it in discussions with counsel, but did throw up the issue of whether the fundamental propositions of law set out in [21], [26], [27] of the Primary Judgment were principles applicable to proceedings under the WHS Act. On further reflection, I do not think that question 17 should go to the Court of Criminal Appeal, as the argument to be made in relation to the non-applicability of judgments in relation to previous legislation will clearly come up in relation to the additional questions in Schedule 1 to the Amended Notice of Motion.
9. I therefore propose to withdraw all of the questions in the existing Stated Case.
10. The written submissions for the defendant repeated a matter which was the subject of submissions put for the defendant in relation to the original version of the Stated Case. The defendant submitted that it is an abuse of process for the prosecutor to now complain that reasonable foreseeability was taken into account, when certain parts of the opening submissions by senior counsel for the prosecutor urged such an approach. The defendant submitted that the prosecutor "encouraged the consideration of reasonable foreseeability" and should not be permitted to propound a case alleging such an error "in direct contravention of the position taken by the prosecutor". The defendant submitted that it would be unfair to raise an entirely different argument to that which was litigated.
11. The prosecutor submitted that the oral opening submissions and the written closing submissions (see MFI 4 on this application) did set out the legal approach which should have been followed by the court, in the same fashion as is now contended (save that the shorthand phrase "decision-making matrix" was not used at trial).

Amendment of the Stated Case: Addition of Questions

1. Senior counsel for the prosecutor referred the court to previous cases where further questions had been added to a Stated Case: Nash v Glennies Creek Coal Management Pty Ltd (No. 5) [2013] NSWIRComm 99; Morrison v Chevalley [2010] NSWIRComm 116 at [13].
2. Senior counsel for the prosecutor characterised question 1 in Schedule 1 to the Amended Notice of Motion as "a re-formulation of a number of the Redundant Questions". Question 1 in the Schedule is as follows: "1. Does the proper construction of the Act require the Court to determine (in the following order): a) whether the pleaded risk to health and safety existed at the date of the alleged offence; b) whether the pleaded measures were reasonably practicable within the meaning of s. 18 of the Act; c) whether the pleaded measures would have eliminated the risk to health and safety, or if not, minimised the risk to health and safety from the pleaded risk within the meaning of s. 17 of the Act; d) whether the failure by the Defendant to take those reasonably practicable measures was a significant or substantial cause of a worker being exposed to the risk of death or serious injury or illness?"
3. Senior counsel for the prosecutor described this approach as a "decision-making matrix" applicable to all prosecutions under s 32 of the WHS Act for a breach of s 19(1) of the WHS Act. Questions 2 and 3 in Schedule 1 are as follows: "2. In respect of step 1b above, is the Court required to take into account and weigh up all of the matters listed in s. 18 of the Act? 3. In respect of step 1c above, does the proper construction of the phrase 'so far as is reasonably practicable' in s. 17 of the Act require the Court to assess whether the pleaded measures would have minimised the pleaded risk to health and safety to a greater degree than the measures (if any) that the duty holder had in place as at the date of the alleged offence?"
4. In par 72 of the prosecutor's written submissions (MFI 1 on this application) the prosecutor submitted that the matrix was as follows: "72.1 To identify whether the pleaded risk to health and safety existed at the date of the alleged offence. In this matter, that was a risk of serious injury or death as a result of the excavator overturning. The Prosecutor says that the Court misapprehended this as the starting point and, instead, approached its decision-making from the point of view of whether the actions of Mr Messenger were reasonably foreseeable. 72.2 The second step in the matrix, in the Prosecutor's submission, is that if the Court finds that the pleaded risk existed at the date of the alleged offence, then the Court is required to determine whether the pleaded measures were reasonably practicable by reference to and upon analysis of the criteria set out in s. 18 of the Act. The Prosecutor says that this was an exercise almost wholly overlooked in the Judgment because it was sidestepped by the determination that the actions of Mr Messenger were not reasonably foreseeable. 72.3 The third step in the matrix is, if the Court has found that the pleaded measures were 'reasonably practicable', for the Court to determine if the pleaded reasonably practicable measures would have eliminated the risk to health and safety or, if not, minimised the risk to health and safety from the pleaded risk within the meaning of section 17 of the Act. 72.4 The fourth step in determining breach, in respect of an offence against section 32 of the WHS Act, is, if the Court has found that the pleaded measures were 'reasonably practicable' and would have eliminated or addressed the risk, for the Court to analyse whether a failure to implement those pleaded measures was a substantial cause of exposing the workers to the pleaded risk."
5. I did comment to senior counsel for the prosecutor that if the decision-making matrix put forward was followed, it would result in a conviction for an offence under the WHS Act in every case, if there was an engineering control which could have been adopted but which was not adopted. I also raised this in [28] of the Stated Case Judgment where I said: "While the implications of such a matrix would have to be worked out on a case-by-case basis, one possible consequence is that the matrix approach would only ever yield a conclusion of guilt in every case. If that is so, then the industrial community needs to know the extent of their obligations and liability under the WHS Act."
6. Senior counsel for the prosecutor submitted that in the Primary Judgment the court had failed to take matters into account in the way put forward in questions 2 and 3. In other words, the prosecutor on this application fairly and squarely submitted that the court had applied the wrong legal test and not taken the correct legal approach to consideration of the charged offence. On the face of it, questions 1, 2 and 3 appear to me to raise questions of law.
7. Questions 4, 5, 6 and 7 in Schedule 1 are as follows: "4. Is the reasonable foreseeability of an incident in which the pleaded risk to health and safety manifested, relevant to assessment of the breach of the duty under s. 19(1) of the Act? 5. Is the reasonable foreseeability of the pleaded risk to health and safety to the duty holder relevant to the assessment of whether pleaded measures were 'reasonably practicable' having regard to the provisions of section 18 of the Act? 6. Does the Act permit the Court to take into account whether the duty holder could reasonably foresee the conduct of the worker(s) exposed to the pleaded risk, prior to considering whether the pleaded measures were reasonably practicable having regard to the provisions of section 18 of the Act? 7. Does the Act permit the Court, in the circumstances where it finds that the duty holder could not reasonably foresee the conduct of the worker(s) exposed to the pleaded risk, to not consider whether the pleaded measures were reasonably practicable having regard to the provisions of section 18 of the Act?"
8. Senior counsel for the prosecutor submitted that each of these questions deals with, and seeks to correct, the mistaken emphasis placed upon "reasonable foreseeability" in the Primary Judgment. Once again, if I have adopted a wrong approach in law to the elements of an offence under the WHS Act, then that is a matter upon which the Court of Criminal Appeal should provide guidance.
9. Senior counsel for the defendant submitted in writing that none of the new questions were proper questions of law. Further, it was submitted that the new questions as formulated were incapable of being answered due to the following reasons: 1. They are multi-faceted. 2. Whether certain matters are relevant to a consideration in the application of the WHS Act should be determined according to the actual charge and evidence, not on a hypothetical basis.
10. In oral submissions, senior counsel for the defendant submitted that the new questions were not questions of law. He characterised the proposed questions as questions of fact, or as questions of mixed law and fact, not pure questions of law.
11. While I agree with senior counsel for the defendant that this is itself a "complicated area", I find that the way in which the questions had been drafted in Schedule 1 to the Amended Notice of Motion does not in any way challenge findings of fact which were made in the Primary Judgment. To my mind the new questions throw up questions of law, upon which I should seek advice.
12. Senior counsel for the prosecutor was very forthright in her oral submissions, respectfully submitting that: 1. I had misapprehended the starting point for considering an offence under the WHS Act (Tcpt 5/10). 2. I did not carry out the exercise required by the WHS Act in my Primary Judgment (Tcpt 5/20). 3. The manner in which I undertook the analysis was incorrect (Tcpt 6/21). 4. There was little or no analysis by me of the five criteria in s 18 of the WHS Act (Tcpt 6/38).
13. On the hearing of the original Stated Case application, and on this hearing, senior counsel for the defendant submitted that what the prosecutor was doing was an abuse of process, as the prosecutor was asking this court to put forward a Stated Case when the prosecutor had invited the court to consider the matter on the basis of the "reasonable foreseeability" approach taken in the Primary Judgment. In order to afford the defendant the opportunity of fully arguing that matter before the Court of Criminal Appeal, I made an order that the transcript of the opening address for the prosecutor and the prosecutor's closing written submissions should be appended to the Stated Case. I will do that again in relation to the Stated Case which I propose to send to the Court of Criminal Appeal as a result of this hearing.
14. I am of the view that additional questions of law can be sent to the Court of Criminal Appeal at any time before I make final orders in the proceedings. There is nothing in the statutory language of s 5AE(1) of the Criminal Appeal Act to prevent me from submitting fresh questions of law to the Court of Criminal Appeal for consideration: see Environment Protection Authority v Grafil Pty Ltd [2019] NSWCCA 174 at [83] and Cobar Management at [89]-[92].

Conclusion and Orders

1. I propose to withdraw questions 1-17 in the Stated Case dated 24 June 2020. I wish to send different questions to the Court of Criminal Appeal. The Stated Case to be engrossed by the prosecutor should contain the following words under the heading "Questions of Law": "I withdraw questions 1-17 set out in the Stated Case dated 24 June 2020".
2. I propose to refer nine questions to the Court of Criminal Appeal in an amended Stated Case. Those questions are as follows: 1. Does the proper construction of the Criminal Appeal Act 1912 (NSW) permit me to withdraw questions which I have previously submitted to the Court of Criminal Appeal pursuant to s 5AE of that Act? 2. Does the proper construction of the Criminal Appeal Act 1912 (NSW) permit me to submit additional questions to those previously submitted to the Court of Criminal Appeal pursuant to s 5AE of that Act? 3. Does the proper construction of the Act require the Court to determine (in the following order): (a) whether the pleaded risk to health and safety existed at the date of the alleged offence; (b) whether the pleaded measures were reasonably practicable within the meaning of s 18 of the Act; (c) whether the pleaded measures would have eliminated the risk to health and safety, or if not, minimised the risk to health and safety from the pleaded risk within the meaning of s 17 of the Act; (d) whether the failure by the Defendant to take those reasonably practicable measures was a significant or substantial cause of a worker being exposed to the risk of death or serious injury or illness? 4. In respect of question 3(b) above, is the Court required to take into account and weigh up all of the matters listed in s 18 of the Act? 5. In respect of question 3(c) above, does the proper construction of the phrase "so far as is reasonably practicable" in s 17 of the Act require the Court to assess whether the pleaded measures would have minimised the pleaded risk to health and safety to a greater degree than the measures (if any) that the duty holder had in place as at the date of the alleged offence? 6. Is the reasonable foreseeability of an incident in which the pleaded risk to health and safety manifested, relevant to assessment of the breach of the duty under s 19(1) of the Act? 7. Is the reasonable foreseeability of the pleaded risk to health and safety to the duty holder relevant to the assessment of whether pleaded measures were "reasonably practicable" having regard to the provisions of s18 of the Act? 8. Does the Act permit the Court to take into account whether the duty holder could reasonably foresee the conduct of the worker(s) exposed to the pleaded risk, prior to considering whether the pleaded measures were reasonably practicable having regard to the provisions of s 18 of the Act? 9. Does the Act permit the Court, in circumstances where it finds that the duty holder could not reasonably foresee the conduct of the worker(s) exposed to the pleaded risk, to not consider whether the pleaded measures were reasonably practicable having regard to the provisions of s 18 of the Act?
3. The amended Stated Case should also set out what appears in the original Stated Case under the heading "Facts" and under the heading "Appendices".
4. My orders are: 1. I direct that the prosecutor engross the amended Stated Case in the appropriate form for submission to the Court of Criminal Appeal. 2. I direct the prosecutor to provide the amended Stated Case to my Associate by 4.00pm on 20 May 2021.

Amendments 14 May 2021 - Amended Representatives Par 3 - removal of the words "SafeWork NSW" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 May 2021